Blow to MPs as courts spell the death of NG-CDF

President William Ruto during the 20th Anniversary of NG-CDF Celebrations at Sfari Park Hotel in Nairobi on May 3, 2024. [Elvis Ogina, Standard]

Members of Parliament suffered a major blow after the High Court withdrew the billions they use for development and other purposes in their constituencies.

High Court judges Kanyi Kimondo and Roselyn Aburili declared that the National Government Constituency Development Fund (NG-CDF) is unconstitutional.

This means that from next year if the ruling stays, MPs will not have access to the kitty.

"The National Government Constituency Development Fund (NGCDF) as amended in 2022 and 2023 is hereby declared unconstitutional. NGCDF and all its projects, programs and its activities shall cease to operate on the stroke of midnight on June 30, 2026," the bench headed by Justice Kimondo ruled.

The ruling on NG-CDF, reintroduced by the legislators, comes after the initial Constituency Development Fund (CDF), was also declared unconstitutional and that it violated the separation of powers.

On Friday, the two majority judges held that Parliament has no role in handling development.

At the same time, they observed that MPs were encroaching on the roles set aside for the county governments.

According to them, the constituency is not a delivery unit. They were of the view that allocating funds leads to the waste of taxpayers' money.

They also ruled that MPs failed to consult the Senate to develop the new law. They were of the view that it should end by June 30, 2026.

On the other hand, Justice Mugure Thande found it unconstitutional. She however departed on the lapse time.

She ruled it should end a year earlier, on June 30, 2025. According to her, it would be a continuation of an illegality if it was allowed to survive another second year beyond her deadline.

The fund was introduced 20 years ago. In 2020, a three-judge bench comprised of Justices Isaac Lenaola (Supreme Court), David Majanja (deceased), and Mumbi Ngugi (Court of Appeal) invalidated the CDF Act but gave lawmakers 12 months to make the necessary amendments to align it with the 2010 constitution.

The MPs appealed but returned and came up with the National Government Constituency Development Fund Act (NG-CDFA) to ensure that they still had a hand in the allocation from the treasury.

In the meantime, the Court of Appeal had a different view of the CDF.

Although Justices Erastus Githinji, Hannah Okwengu and GBM Kariuki found that the fund is necessary for constituency development and constitution, they ruled out the involvement of lawmakers in deciding the projects or the staff to manage billions disbursed every year from the treasury.

The judges, in agreement with the High Court, found that the control powers lawmakers awarded themselves on CDF are a reserve of the executive arm of the Government and thus unconstitutional.

The court found that the powers to appoint CDF staff can be done by a Cabinet Secretary or the CDF board.

All other roles which had been set for the MP, according to the court should have been carried out by a sub-county administrator.

“The executive functions performed by the MP could properly have been assigned to the sub-county administrator as an officer of the national government. The appointment of MPs to perform purely executive duties of enforcing CDFA is violative of the Constitution and principles of Separation of Powers and of National Values and Governance,” the court ruled.

The NGCDFA was also challenged on account that MPs never involved the Senate in formulating the new law and it undermines devolution.

The case to have NGCDF declared unconstitutional was filed by Wanjiru Gikonyo and Cornelius Opuot, complaining that the lower house disregarded the upper one whilst coming up with the new law and at the same time the legislators made it in such a way that they have control over the implementation of the new fund.

The two also argued that the NGCDF Act offends the principles of the Public Finance and Management Act and division of revenue, which spells out that the division of revenue, should be between the National Government and the Counties, and not constituencies.

MPs had vowed to stall the budget process if they did not have a hand in the CDF jar but their fate is sealed that they cannot touch it.

This year, MPs ought to have received Sh62.3 billion from the Treasury as an allocation for the 2024-2025 budget.

This follows yet again another judgment by High Court judge Joseph Onguto which limited their allocation to less than 2.5 percent of total Government revenue allocation.

"The national revenues ought not to be chopped off even if it's a penny. The court cannot allow it without interference," the judge ruled adding that it was against the law to give more than what was set in the national revenue sharing law.